Los-Angeles-Shooter Loc: Los Angeles

NOTES:

There is copyright in 3-dimensional items like sculptors, as well as in 2-dimensional items like photographs. This matter involves the Post Office, through a combination of slovenliness, stupidity, and arrogance, infringing the sculptor's rights to his sculptor. The USPS' claim of "fair use" is 100% bogus and should have resulted in fines by the court for advancing such a specious defense.

I post this because it reminds all us creators of our rights. And also reminds us that the government, which increasingly sees itself as our masters, has no right to pirate our work. (Presumably this case may make federal agencies less inclined to steal).

The USPS spends gazillions of your tax dollars and has a huge legal department at its headquarters at 475 L'Enfant Plaza, Washington, DC. Apparently the USPS has never heard of a "property release" or else the bureaucrats are too lazy or arrogant to bother getting permission. The USPS has over the years engaged in many patterns of waste and occasionally crime; it's nice to see that they get nailed for thievery. It would be even nicer to see the bureaucrats involved get criminally charged. But I don't expect that to happen: there is one set of laws for productive citizens and quite another for overpaid arrogant bureaucrats. There is also another set of rules for employment: executives in a private firm who behaved in such an idiotic and dishonest manner would probably be fired or demoted; but for federal bureaucrats? No punishment at all.

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BURLINGTON, Vt. -- A Vermont sculptor who sued the U.S. Postal Service for copyright infringement, has won a historic settlement of nearly $685,000.

The case involved the printing of stamps with an image of the soldiers Frank Gaylord, of Barre, Vt., sculpted for the Korean War Veterans Memorial in Washington, D.C.

The Postal Service said Friday it "respectfully disagrees" with the U.S. Court of Federal Claims' damages decision and that, together with the Department of Justice, it is considering whether to appeal.

The largest settlement the Postal Service previously paid for any image on a stamp was $5,000.

The Postal Service originally did not offer Gaylord any compensation, and in 2008 the Court of Federal Claims ruled in the Postal Service's favor, saying its use of a photograph taken of the memorial during winter by a retired Marine fell under the doctrine of "fair use," exempting it from copyright protection.

In 2010, Gaylord's attorney Heidi Harvey of the Boston law firm Fish & Richardson won a reversal of that decision in the Court of Appeals for the Federal Circuit.

On Friday, the Court of Federal Claims — directed by the Court of Appeals to "determine the proper amount of damages due Plaintiff Frank Gaylord" — settled on $684,844.

"God Bless America," Harvey said simply in an email responding to the judgment.

Harvey added that she was "very pleased" that Gaylord had been "vindicated in his request for just compensation for the Postal Service's infringement."

Gaylord spent five years sculpting the 19 soldiers known as The Column. The result was a war memorial that many feel is the most compelling on the National Mall. He was paid $775,000 by the government for the statues but only netted about $200,000 after expenses, according to court testimony.

Gaylord, 88, has waited a long time for this week's settlement, filing his lawsuit against the Postal Service seven years ago. Gaylord also sued the former Marine, John Alli, who took the photo that the Postal Service used on its stamp in 2003, commemorating the 50th anniversary of the war. Alli was paid $1,500 by the Postal Service for the use of his photo.

Gaylord settled quickly and amicably with Alli, who agreed to pay Gaylord a 10 percent royalty on any further sales of the image.

The Court of Federal Claims used the same 10 percent "running royalty" to determine the fair market value of Gaylord's copyright at nearly $685,000. The bulk of Gaylord's award came from the court's determination that the Postal Service collected an estimated $5.4 million for stamps purchased by collectors, entitling Gaylord to $540,000.

Heidi Harvey said the royalty on sales of stamps to collectors was "entirely consistent" with Gaylord's licensing practices.

"We feel the Postal Service should have been, through this entire dispute, willing and able to share a small percentage of those sales with Mr. Gaylord," Harvey said.

The balance of Gaylord's award came from royalties on merchandise sales and prejudgment interest.

Robert Graybeal Loc: Myrtle Beach

WHAT! Now we can't sell or use a photo we have taken of a statue?

Los-Angeles-Shooter Loc: Los Angeles

If the statue's copyright is in the public domain you can do whatever you want with an image of it.

If the statue is within copyright, a commercial user of the statue should get a copyright license from the rights owner.

It's somewhat analogous to Right of Publicity, but would take much too long to explain the nuances.

The USPS knew or should have known that it's actions were infringing the rights in the statue. It made many millions of dollars from its infringement, and either never bothered to try to get the rights, or else figured it could get away with its piracy.

Other articles indicated that the sculptor was amenable to settling cheap but the USPS did not negotiate in good faith and figured it could "bury him in paper."

Musket Loc: ArtBallin'

You cant sell a photo of someone elses work that carrys a copyright is the to long, didnt read of this situation.

USPS didnt do its part and is paying for this mistake now.

SpeedyWilson Loc: Upstate South Carolina

Here's an article with pictures of the stamp and the actual statues:

http://petapixel.com/2013/09/23/sculptor-awarded-685000-photo-korean-war-memorial-used-stamp/

Robert Graybeal Loc: Myrtle Beach

I'm sure you are right.
I hope the guy that built those S*houses doesn't find out your using that pic.

Los-Angeles-Shooter Loc: Los Angeles

It is not clear from the articles, but normally the thief in a piracy case like this has to pay the plaintiff's attorney fees. So if not included in the $685,000 there's likely another $100,000 or so that the Postal Service will cough up. The fees will be considerable because the case was hard-fought for several years and included an appeal after the trial court got it wrong and [idiotically] ruled that the theft was "fair use."

Bill Houghton Loc: New York area

I don't know, the government pays him to do a sculptor on public domain. I would have to read this contract to agree with the court system. I always though that the post office was part of the government. So that licensing should have been covered. Sounds to me like something isn't right in Denmark. This sculptor isn't related to any politician by chance.

Los-Angeles-Shooter Loc: Los Angeles

The USPS has an odd status as a quasi-private agency. The significant question is whether the sculptor retained copyright, and obviously he did. If he didn't, the case would have thrown out of court at the beginning. No articles mentioned any relationship to politicians. Possibly there was crookedness in deciding what sculptor got the gig; there is often crookedness in awarding such juicy contracts.

Bill Houghton Loc: New York area

It was thrown out once, so your implying are just system is above reproach.

UtahBob Loc: Southern NJ

I'd expect that contract to speak to the royalty free use regarding the viewing of the artwork at the location but further use beyond that?

Anyway, how does this relate to taking photos of cityscapes? Is each building really a sculpture? Again, I guess it only matters if you are looking to sell them?

Bill Houghton Loc: New York area

I think that now that a presidence is set in taking an Image of a piece of work, if it be in a park, or even a bike, this establish a president in the law. That images taken of others work are now subject to law suits. Be it bridge, building or a floral display. If the owner doesn't have a release from the artist or designer, then a law suit could presume. I.E. you photo a model in park has a statue in the back ground. You have a release for the model, but what about the sculpture who made the stature. Your photo goes to Forbes or what ever, they made hundreds of thousand in the sale of that rag. Due you feel you owe the sculpture can sue you.

Edit: I doubt the artist that sculpted the statues had any clauses regarding photographic rights, especially with the statues going in a public forum and knowing thousands of photographs were going to be take monthly.

georgevedwards Loc: Essex, Maryland.

My first response was hooray for the artist. Then I read the details: the artist was paid a half a million by the gov't to make the statue for the gov't. The gov't uses it for a stamp. It is the UNITED STATES Post Office. Case closed. Taxpayers now get ripped off for paying the sculptor another half million. Outrageous. Not to mention serious damage done to the real freedom of expression for photographers/artists. No one will be to take a picture of a statue again without looking over their shoulder and not being able to sleep at night lest the photography police get 'em. I am from Baltimore, famous for its monuments, which is why it is called "The Monumental City". Now they will have to put up signs "Taking pictures of this sculpture forbidden, may be hazardous to your health and your wallet" Perhaps a middle ground could be reached, depending on use of said photograph. 99.999% would never involve that kind of money, yet those 99.999% will be affected by something that will never pertain to them.

georgevedwards Loc: Essex, Maryland.

Thanks for supplying the link so we can see the facts of the case. It changed my mind.

jerryc41 Loc: Catskill Mts of NY

I'd love to know how this stamp came about, step-by-step. Someone made the decision to use the image. From that point on, it was just working through the system. I bet a very small number of people actually chose it. They were thinking more of the sculpture - gov't sculpture on gov't property - than the sculptor who made it. Who owns this display?


I wonder when that $685,000 will change hands.